How the Supreme Court shaped due process in death penalty cases

1. At a Glance

• The topic: how the Supreme Court has built procedural safeguards ("due process") around the death sentence. It upheld capital punishment in 1980 and then limited its use through rules on how judges must exercise their discretion when sentencing [1].
• Two key cases: Bachan Singh v. State of Punjab (1980) set the doctrine. Manoj v. State of Madhya Pradesh turned that doctrine into concrete "practical guidelines", including mental health evaluations and custody conduct reports of the accused [1].
• The core rule: life imprisonment is the norm. A death sentence needs "special reasons" and is allowed only when the alternative of life imprisonment is "unquestionably foreclosed" [1].
• Why it matters for UPSC: it touches Article 21, the new criminal laws (BNSS, 2023), judicial discretion, human rights and ethics (dignity of life). It maps to GS-II and GS-IV.

2. Why in the News

• The Day Against the Death Penalty, observed on October 10, prompted a review of how the Supreme Court's 1980 safeguards have fared "over the past four decades" [1].
• An analytical article by L. Nageswara Rao, "How the Supreme Court shaped due process in death penalty cases", was published in The Hindu on 4 November 2026 (Chennai print edition, supplement, page 24) [1].
• New criminal laws: the sentencing provision has moved from Section 354(3) CrPC to Section 393(3) BNSS, 2023, which renews the question of how Bachan Singh's safeguards carry over [1].

3. Background & Evolution

• Statutory base: Section 354(3) of the CrPC requires courts to record "special reasons" when they award death instead of life imprisonment. Bachan Singh followed this "legislative scheme" [1].
• Milestones (chronological):
• Jagmohan Singh v. State of U.P. (1973) upheld the death penalty before the "special reasons" requirement existed [GK — verify].
• Bachan Singh v. State of Punjab (1980): a Constitution Bench upheld the death penalty and imposed guidelines for judicial discretion [1]. This is the origin of the "rarest of rare" formulation [GK — verify].
• Machhi Singh v. State of Punjab (1983) listed categories of crime where death may be warranted [GK — verify].
• Mithu v. State of Punjab (1983) struck down the mandatory death sentence (Section 303 IPC) [GK — verify].
• Shatrughan Chauhan v. Union of India (2014) held that unexplained delay in deciding mercy petitions can justify commuting a death sentence [GK — verify].
• Law Commission, 262nd Report (2015) recommended abolishing the death penalty except for terrorism-related offences and waging war [GK — verify].
• Manoj v. State of M.P. (2022) [year GK — verify] prescribed "practical guidelines": mental health evaluation and custody conduct reports of the accused [1].

• BNSS, 2023: Section 354(3) CrPC was carried over as Section 393(3) BNSS [1].

• Driving rationale: the death sentence is exceptional not because the offence is numerically rare, but because of "a real and abiding concern for the dignity of human life" [1].

4. Core Static Facts

Item	Fact
Landmark case	Bachan Singh v. State of Punjab (1980), Constitution Bench [1]
Holding	Death penalty upheld but conditioned by guidelines for judicial discretion [1]
Old provision	Section 354(3), CrPC [1]
New provision	Section 393(3), BNSS, 2023 [1]
Default sentence	Life imprisonment (norm); death only for "special reasons" [1]
Threshold for death	Life imprisonment must be "unquestionably foreclosed" [1]
Balancing test	Circumstances of the crime weighed alongside the circumstances of the accused [1]
Exceptionality principle	Qualitative, not quantitative: rests on the dignity of human life [1]
Procedural case	Manoj v. State of M.P.: "practical guidelines" [1]
Manoj's mandated inputs	Mental health evaluation; custody (jail) conduct report of the accused [1]
Commemorative day	Day Against the Death Penalty: 10 October [1]
Constitutional anchors	Art. 21 (procedure established by law); Art. 72 (President's pardon); Art. 161 (Governor's pardon) [GK — verify]
Offence (new code)	Murder: Section 103, BNS, 2023 (was Section 302 IPC) [GK — verify]

• Key terms:
• Aggravating circumstances: factors about the crime that point towards a harsher sentence.
• Mitigating circumstances: factors about the accused (age, background, mental health, chance of reform) that point towards leniency [S1 for the crime-versus-accused balance].
• Mitigation investigation: collecting the accused's psycho-social history before sentencing.
• Reformation: whether the accused can be rehabilitated, which Manoj's jail-conduct and mental-health reports are meant to inform [1].

5. Multi-Dimensional Analysis

Legal / Constitutional

• Bachan Singh made death sentencing a matter of structured discretion, not mandatory punishment. The default is life imprisonment, and departing from it requires recorded "special reasons" [1].
• The "unquestionably foreclosed" test effectively requires courts to show why the alternative of reform is ruled out. This moves the burden onto the case for imposing death [1].
• Manoj makes the test workable by requiring material evidence about the accused: mental health and conduct in custody [1].
• Moving the provision into BNSS Section 393(3) keeps the doctrine in place without any change in legislative intent [1].

Ethical

• Exceptionality rests on "a real and abiding concern for the dignity of human life", not on how often an offence occurs [1]. This is an ethics-of-punishment debate: retribution versus reformation (GS-IV).
• Arbitrariness concern: a balancing test applied unevenly can give similar offenders different outcomes ("judge-centric sentencing") [analytical].

Social

• The accused's circumstances (poverty, mental illness, background) become legally relevant, which matters most for marginalised accused with weak legal representation [analytical; balancing principle per S1].
• Mental health evaluations bring psychiatric vulnerability into sentencing [1].

Governance / Administrative

• Manoj's guidelines place duties on the State: prison authorities produce conduct reports, and health services produce psychological evaluations [1]. This needs capacity in prisons and forensic psychiatry [analytical].
• Trial courts must hold a meaningful separate hearing on sentence, not a formality [GK — verify].

Historical / Comparative

• Over four decades India has moved from upholding the death penalty to making it procedurally harder to impose [1].
• The international trend (UN General Assembly moratorium resolutions) leans towards abolition. India keeps the death penalty but uses it rarely [GK — verify].

6. Recent Developments (last 12–18 months)

• 4 Nov 2026: The Hindu analysis of the Supreme Court's due-process jurisprudence on the death penalty, linked to the 10 October Day Against the Death Penalty [1].
• BNSS, 2023 in operation: sentencing now proceeds under Section 393(3) BNSS in place of Section 354(3) CrPC [1].
• Pending: a suo motu Constitution Bench reference (In Re: Framing Guidelines Regarding Potential Mitigating Circumstances, referred in 2022) on the timing and process of sentencing hearings [GK — verify current status].
• No other 2025–26 developments could be verified within the retrieval budget (see S-note in Section 11).

7. Prelims Hooks

• Bachan Singh v. State of Punjab was decided in 1980 by a Constitution Bench [1].
• Bachan Singh upheld the constitutional validity of the death penalty [1].
• Under Bachan Singh, life imprisonment is the rule and death is the exception [1].
• A death sentence requires "special reasons" to be recorded [1].
• Section 354(3) CrPC is now Section 393(3) BNSS, 2023 [1].
• Death is allowed only when life imprisonment is "unquestionably foreclosed" [1].
• Courts must weigh the circumstances of the crime and of the criminal together [1].
• Exceptionality is not quantitative; it rests on the dignity of human life [1].
• Manoj v. State of Madhya Pradesh prescribed "practical guidelines" for sentencing [1].
• Manoj requires mental health evaluation and custody conduct reports of the accused [1].
• The Day Against the Death Penalty is observed on 10 October [1].
• The mandatory death penalty (Section 303 IPC) was struck down in Mithu (1983) [GK — verify].
• Delay in disposing of mercy petitions is a ground for commutation (Shatrughan Chauhan, 2014) [GK — verify].
• The Law Commission's 262nd Report (2015) recommended abolition except for terror offences [GK — verify].

8. Why Similar Crimes Still Get Different Sentences

• The worry was raised on the day the death penalty was upheld
• In Bachan Singh, Justice Bhagwati dissented, meaning he disagreed with the majority. He said that without standards to guide judges, the safeguards cannot remove “arbitrariness and freakishness”. Arbitrariness means outcomes that depend on chance, not on rules [3].

• He held that the death penalty therefore violates Articles 14 and 21. Article 14 guarantees equality before law. Article 21 protects life and personal liberty [3].

• The Supreme Court's own benches disagree on a basic step

• One group of three-judge benches says the trial court should stop after conviction and fix a later date for the sentencing hearing (Allauddin Mian, 1989) [3].
• Another group (Dagdu, 1977, followed in Mukesh, B.A. Umesh and others) says a death sentence given on the same day as the conviction is still valid. Any missing hearing can be given later by the appeal court [3].

• In 2022 the Court said this is “a clear conflict of opinions”. It sent the question to a five-judge bench, which has not yet decided it [3].

• The Court has said in its own words that judges often react to how brutal the crime was

• Manoj (a three-judge bench, 2022) said mitigation must be looked at during the trial. Mitigation means the facts about the accused that point towards a lighter sentence [2].
• The reason it gave: to avoid “a retributive response to the brutality of the crime”. Retributive means punishment as payback. It said this is “noticeably the situation in a majority of cases reaching the appellate stage” [2].
• The Court also noted that Manoj came after concerns, listed in the Law Commission's 262nd Report, that death sentencing was inconsistent and inadequate [2].

9. Why the Accused's Side of the Story Arrives Late or Never

• The trial is set up to favour the prosecution's evidence
• Aggravating circumstances are the facts about the crime that point towards a harsher sentence. They are already on record, because they are part of the prosecution's evidence for conviction [3].

• Mitigating facts can only be presented after conviction. The Court said this puts the convict at “a hopeless disadvantage, tilting the scales heavily against him” [3].

• This problem was identified 50 years ago and is still not fixed

• The Law Commission's 48th Report (1972) found that courts lacked information about the offender's background. This led to Section 235(2) CrPC, which gives the accused a separate hearing on sentence [3].
• In 2022, Manoj said that four decades after Bachan Singh there had been “little to no policy-driven change” in how mitigating facts are collected [3].

• So the law gave the accused a right to be heard on sentence, but no system to gather the facts needed for that hearing.

• Weak legal aid can empty the safeguard completely: the Dupare case

• The accused could not afford a private lawyer. His legal-aid lawyer was absent on key dates, so four important witnesses were never cross-examined (questioned by the defence) [2].
• He was convicted and sentenced to death on the same day in 2010 [2].
• After the High Court sent the case back, the same lawyer was absent again, this time at the hearing on sentence [2].

• Tests done only in 2022 found low intellectual functioning and organic brain injury. No court had seen this when it confirmed the sentence [2].

• The State has not built the prisons that reform needs

• Manoj said that the failure to carry out prison reforms has left prisons “a space of limited potential for systemic reformation” [2].
• Courts are told to decide whether a convict can reform. But the prisons that should help reform, and report on it, are not equipped to do so.

10. The Dupare Ruling: Finality of Judgments Versus a Life

• What the Court decided (25 August 2025)
• Article 32 gives every person the right to go directly to the Supreme Court when a fundamental right is violated. A three-judge bench held that this right allows the Court to reopen a death sentence that was given without following Manoj [2].
• The Court set aside the death sentence and ordered a fresh hearing on sentence alone. The conviction was left untouched [2].

• Its reasoning was that court judgments normally apply retrospectively, meaning they also cover past cases. So a convict who has not yet been executed can claim the benefit of Manoj [2].

• The trade-off is real, and the Court admitted it

• The Union and Maharashtra governments argued that Manoj applies only to future cases. They said reopening old cases would “flood the system with stale challenges” [2].
• The Court called this worry “somewhat justified”. It therefore allowed reopening only where there is a “clear, specific breach” of the Manoj safeguards [2].

• It was told that only 7 death-row convicts were seeking the benefit of Manoj. That number keeps the immediate effect small [2].

• What this shows about the system

• The case had already gone through every regular stage: trial, High Court, Supreme Court appeal (2014), review (2017), the Governor's pardon (rejected in 2022) and the President's pardon (rejected in 2023) [2].
• Yet the Court still found that the sentencing was flawed. All those stages did not ensure the accused's side was heard.
• The Governor took over four years to decide the mercy petition (filed December 2017, rejected February 2022) [2]. This shows that delay at the executive stage is still a problem.

11. The Strongest Case for Abolition, and an Honest Reply

• The case for abolition
• Deterrence is not proven. The Supreme Court itself wrote in 2025 that research “has yet to establish” that executions prevent murder better than life imprisonment [2].
• Mistakes cannot be corrected. The Court noted that a death sentence ends any chance of “uncovering mistakes that sometimes emerge only after many years” [2].
• Safeguards depend on who is in court. Dupare shows that a poor accused with an absent legal-aid lawyer can reach the gallows without any mitigation hearing [2].

• Global practice is moving away from it. The UN General Assembly voted 125 to 37 (with 22 abstentions) in 2022 for a moratorium, meaning a halt on executions [4].

• The reply, and what it gets right

• Bachan Singh upheld the death penalty partly because the law provides “valuable safeguards”, such as confirmation of every death sentence by the High Court [3]. The way forward is to make those safeguards work, not to assume they already do.
• Life imprisonment is a real alternative. Under Section 433A CrPC, anyone whose death sentence is commuted to life, or who gets life for an offence punishable by death, must serve at least 14 years before release [3].
• UN resolutions are not binding. Some states, such as Japan, vote against them because they see the death penalty as each country's own decision [4].

• The Supreme Court counts 54 countries, including India and the USA, that still keep the death penalty in law [2].

• Where this leaves the debate

• Supporters of keeping the death penalty must accept that Bachan Singh's promise of consistency has not been kept after 45 years. The Court's own admissions show this [2][3].
• Those who argue for abolition must accept that the Court has kept tightening the process rather than giving up on it (Manoj 2022, Dupare 2025) [2].

12. Who Must Act Next, and How

• The five-judge bench should fix when the sentencing hearing must happen
• The reference in Suo Motu W.P. (Crl.) No. 1 of 2022 asks whether same-day sentencing is allowed. It also asks how psychological evaluation should be done and how to build institutional capacity for it [3].

• Until it rules, trial courts follow two conflicting lines of judgments [3].

• Parliament should write the Manoj process into law

• Manoj called its guidelines a stop-gap “till the legislature and executive formulate a coherent framework through legislation” [2].

• When BNSS replaced the CrPC, the old sentencing rule was carried over as Section 393(3) without any change [1]. So the Manoj process still depends only on court orders, not on a statute.

• State governments and prisons should prepare the reports Manoj requires

• The State must give the trial court a psychiatric and psychological evaluation of the accused, done soon after the offence [2].
• It must also give a social history: age, family, education, poverty and work. And it must give a jail-conduct report from the Probation Officer or Jail Superintendent [2].

• An early evaluation gives appeal courts a baseline, meaning a starting point to measure later reform against [2].

• Learn from the US practice: jail conduct is evidence the court cannot refuse

• In Skipper v. South Carolina (1986), the US Supreme Court overturned a death sentence. The trial judge had refused to hear jailers testify that the accused behaved well in custody [2].
• In Lockett v. Ohio (1978), it struck down a law that limited which mitigating facts a judge could consider [2].
• India's Manoj jail-conduct report does the same job. Indian law could make it a right of the accused, not just a matter of practice.

13. Anchors for Answers

• Data: Only 7 death-row convicts were seeking the benefit of Manoj when Dupare was decided (2025) [2]
• Data: UN General Assembly moratorium vote, 2022: 125 in favour, 37 against, 22 abstentions [4]
• Report/Committee: Law Commission 262nd Report (2015) found death sentencing inconsistent and inadequate [2]; Law Commission 48th Report (1972) led to the separate hearing on sentence under Section 235(2) CrPC [3]
• Law/Case: Vasanta Sampat Dupare v. Union of India (2025): Article 32 allows reopening a death sentence given without Manoj safeguards [2]; Suo Motu W.P. (Crl.) No. 1 of 2022: reference to a five-judge bench on same-day sentencing [3]; Bhagwati J.'s dissent in Bachan Singh on “arbitrariness and freakishness” [3]
• Comparison: USA, Lockett v. Ohio (1978) and Skipper v. South Carolina (1986): no mitigating evidence, including good jail conduct, may be excluded [2]

14. Mains Relevance

• GS-II:
• Structure and functioning of the Judiciary
• Fundamental Rights (Art. 21)
• Statutory reforms (BNSS/BNS 2023)

• Executive powers of pardon (Arts. 72/161)

• GS-IV:

• Ethics of punishment: dignity of life, retributive versus reformative justice

• Compassion and fairness in public decision-making

• Essay: "Justice tempered with mercy" or "Dignity of life" themes.

• Question stems: 1. The 'rarest of rare' doctrine has been criticised as judge-centric. Examine how the Supreme Court has tried to structure sentencing discretion from Bachan Singh (1980) to Manoj (2022). (15 marks) 2. Life imprisonment is the rule, death the exception. Discuss the procedural safeguards in death penalty sentencing and assess whether they have achieved consistency. (10 marks) 3. Should India abolish the death penalty? Evaluate in light of constitutional jurisprudence, the Law Commission's recommendations and international trends. (15 marks)

15. Related Topics to Study Next

• Pardoning powers (Art. 72 vs Art. 161): the last executive safeguard after judicial confirmation of a death sentence.
• Art. 21 and due process (Maneka Gandhi, 1978): the doctrinal base for "fair, just and reasonable" procedure.
• BNS/BNSS/BSA 2023: how the criminal-law overhaul reorganised sentencing provisions.
• Prison reforms and the Model Prisons Act: the source of the custody conduct reports Manoj requires.
• Mental Healthcare Act, 2017: the mental health of the accused as a mitigating factor.
• Law Commission reports on the death penalty (35th, 262nd): the official policy record on retention versus abolition.
• Death row delays and mercy jurisprudence (Shatrughan Chauhan): delay as a ground for commutation.
• UN moratorium resolutions and ICCPR Second Optional Protocol: the international position India has not signed.

16. NCERT Concepts to Revise

• Rarest of rare doctrine (Polity): This is the core Bachan Singh rule: death only when life imprisonment is unquestionably foreclosed.
• Procedure established by law (Polity): Article 21 allows taking life only by fair, just and reasonable procedure, the base of these safeguards.
• Bharatiya Nagarik Suraksha Sanhita 2023 (Polity): It replaced the CrPC, so the 'special reasons' sentencing rule now sits in Section 393(3).
• Constitution bench (Polity): Bachan Singh was decided by a five-judge Constitution Bench, which is why its guidelines bind lower courts.
• Commutation (Polity): Courts and executive can reduce a death sentence to life imprisonment, for example after unexplained delay.
• Mental Healthcare Act 2017 (Polity): Manoj requires mental health evaluation of the accused, which links to this law on mental health.

17. Common Errors / Trap Areas

• Wrong case: Bachan Singh upheld the death penalty and did not strike it down [1]. Do not confuse it with Mithu, which struck down only the mandatory death sentence.
• Section renumbering: the sentencing provision is Section 393(3) BNSS (formerly 354(3) CrPC) [1]. The offence of murder sits in the BNS (Section 103), not the BNSS.
• Misreading "rarest of rare": it is not a statistical test of how rare a crime is. It is a qualitative test grounded in human dignity [1].
• Misreading Manoj's guidelines: Manoj did not create a new law. It set procedural "practical guidelines" (mental health and conduct reports) within the existing Bachan Singh framework [1].
• Date trap: the World/International Day Against the Death Penalty is 10 October, not 10 December (Human Rights Day) [1].